The appeal of Re S (Appeal from Care and Placement Orders) [2014] EWCA Civ 135, [2015] 1 FLR 130 has clarified whether the approach to ordering costs against local authorities in care proceedings (set out in Re T (Costs: Care Proceedings: Serious Allegation Not Proved) [2012] UKSC 36, [2013] 1 FLR 133) extends to the costs of appealing the orders made in such proceedings.

In Re S the respondent’s appeal against a full care order made in respect of his daughter was allowed by the Court of Appeal. Despite finding that the appellant local authority had not engaged in reprehensible behaviour or taken an unreasonable stance in the hearing at first instance, which would be required to depart from the normal rule that costs were not awarded in children’s cases, a costs order was made against the appellant in respect of the costs of the appeal.

Writing for Family Law ([2014] Fam Law 991) Andrew Bainham and Hannah Markham, who represented the father and local authority respectively in Re S, reviewed the Court of Appeal judgment as a study in what may now be required.

'The decision of the Court of Appeal in Re B-S (Adoption: Application of s 47(5)) [2013] EWCA Civ 1146, [2014] 1 FLR 1035 in September 2013 has had major implications for parents, local authorities and the courts. It has provoked a fundamental reappraisal of the use of adoption as a child protection mechanism and of the legal requirements which must be observed where placement orders are sought. The newly enacted Children and Families Act 2014 contains provisions relating to care and adoption which may be thought to pull in the opposite direction by encouraging the use of adoption and attempting to streamline the legal process relating to care and placement proceedings.'

A follow up article by Andrew and Hannah will appear in the May issue of Family Law.

Background to the appeal

The father of a young girl (called Amelia in the judgment) successfully appealed against a placement
order obtained by a local authority for Amelia’s adoption without her father’s consent. The Court of
Appeal ordered the local authority to pay the father’s costs of the appeal. The issue arising on this
appeal is whether it was right to do so, given the principle confirmed by the Supreme Court in In re T
(Care Proceedings: costs) [2012] UKSC 36 that in general local authorities should not be ordered to pay
costs in care proceedings.

Amelia’s father married her mother in 2002 but they separated in 2007 before she was born. Amelia
lived with her mother. Care proceedings were commenced as a result of concerns on the part of the
local authority that Amelia and her other sibling and half siblings had suffered or were likely to suffer
significant harm owing to a lack of proper parental care from their mother. The father had had only
limited contact with the children. The local authority considered that he did not have the capacity to
meet Amelia’s high level of need and, with the support of the children’s guardian allocated in the care
proceedings, sought a closed adoption for her (ie without contact with her birth family). The judge at
first instance accepted the local authority’s opinion and made the placement order.

The placement order was overturned by the Court of Appeal on the basis that the judge had been
wrong to make the order without further assessment of the situation of the father and child, and had
not adequately articulated her reasons. Since then further assessment has taken place and Amelia has
now been placed with her father under a child arrangements order.

In bringing the appeal the father incurred legal costs assessed in the sum of £13,787. The Court of
Appeal ordered that the local authority should pay those costs because it had resisted the appeal, and
in order not to deter a parent from challenging decisions which impact on the most crucial of human
relationships. It held that the principle in In re T was not applicable to appeals.

The local authority appealed to the Supreme Court in relation to the costs order only, and on the basis
that whatever the outcome, it would not seek to recover the costs awarded and paid to the father.

Judgment

The Supreme Court unanimously allows the appeal by the local authority and sets aside the costs order
made in the Court of Appeal. Lady Hale gives the only judgment.

Reasons for the appeal

In re T upheld the general practice of not awarding costs against a party, including a local authority, in
children’s proceedings, in the absence of reprehensible behaviour or an unreasonable stance. It held
that local authorities should not be deterred from their statutory duty to protect children by bringing
proceedings. In re T was different from this case, in that it involved a first instance fact-finding hearing
rather than an appeal; and the costs of interveners who merely wished to clear their names of abuse
allegations, rather than of parents who wished to care for the child themselves [13]. The question was
whether these distinctions were material.

The general rule that in civil proceedings the unsuccessful party will be ordered to pay the costs of the
unsuccessful party does not apply to first instance or appellate proceedings about children [15]. For
many years the practice in such proceedings has been to make no order in the absence of exceptional
circumstances. The only winner should be the child and no one should be deterred by the risk of
having to pay the other side’s costs from playing their part in helping the court achieve the right
solution [21]. It is important for the parties to be able to work together in the interests of the children
during and after the proceedings, which stigmatising one party as the loser does not assist [23]. An
order to pay costs may reduce the resources available to look after the child or, for a local authority,
reduce the budget for the protection of other children [24]. It is irrelevant whether a party is publicly
funded or not [25].

Parents are always entitled to resist the claim of the state to remove their children from them, but it
does not follow that the local authority is unreasonable in seeking to protect the child if it loses [28].
On an appeal different considerations will apply when assessing whether a party has acted
unreasonably but the principle is the same [29]. In re T did not rule out the possibility of other
circumstances in which an award of costs in care proceedings might be appropriate [31] provided that a
local authority was not put into a worse position than private parties [32]. Nor should it be put in a
better position. The object of the exercise is to achieve the best outcome for the child and there may
be cases where the welfare of the child would be put at risk if a costs order is not made [33].

In this case it is not suggested that the local authority has behaved in any way reprehensibly towards
Amelia or her father [35]. The suggestion that it should not have opposed the appeal because of the
deficiencies in the first instance judgment is unwarranted and the Court of Appeal would have been
surprised had the local authority failed to respond to the appeal [36]. None of the exceptions to the
general approach to awards of costs in children cases applies in this case and the appeal (with the
assurance that the local authority has given as regards the father’s costs in this case) is therefore
allowed [39].